On April 18, the U.S. Senate Rules Committee will hold a hearing, on the subject of possibly repealing limits in the McCain-Feingold law on how much money political parties may spend on behalf of their own nominees. Speakers in favor include John Samples of the CATO Institute, and attorney Marc Elias. Speakers opposed to the idea are Fred Wertheimer of Democracy 21, Dr. Thomas E. Mann of The Brookings Institution, and Gary Kalman of U.S. Pirg.
Thanks to Rick Hasen for this news.
On April 12, a California Superior Court in Alameda County ruled that when voters exercise their statutory right to a recount, elections officials must produce information from “inside” electronic vote-counting machines. The case was filed in November 2004, after Alameda County was asked to recount the vote on a ballot measure, Berkeley’s Measure R. Alameda County used Diebold electronic touchscreen machines for voters at the polls (voters who voted by mail used paper ballots). Supporters of Measure R, which had narrowly been defeated, asked to see back-up data that is stored inside the machines. They also asked to see the audit logs generated by the vote-counting system that show whether the system functioned properly. Finally, they asked to examine the results of “Logic & Accuracy” testing that had been performed on the machines before and after the election. The county had denied all three requests.
The judge said that the plain meaning of the word “recount” required the county to produce all the requested records. The court also cited the California Constitution (Article II, sec. 2.5), which protects the right to have a valid vote counted. Finally, the court cited Bush v Gore, and said that since the absentee mail votes could be recounted, that the voters who voted at the polls were treated differently, and the differential violates equal protection. Since the machines no longer contain the requested data, another hearing will be held on May 4 to determine whether the county should be sanctioned for not preserving the records. The case is Americans for Safe Access v County of Alameda, RG04-192053. It took this long to get a decision because initially the Superior Court had denied relief, but the State Court of Appeals last year had remanded the case back to the lower court with instructions to hear it over again.
On April 13, the Reform Party asked the 11th circuit to rehear part of its decision, in the case over whether the party must pay back $333,000 to the Federal Election Commission. The 11th circuit had refused to rule on whether it was proper for the U.S. District Court to tell the party not to spend any money on anything except repaying the debt. The 11th circuit’s justification for refusing to consider this, was that it said the party had not raised this point in the U.S. District Court.
However, the petition for rehearing proves that the party did raise this point in the U.S. District Court.
On April 13, a U.S. District Court in Missouri ruled that the U.S. Department of Justice made a legal error when it sued Missouri’s Secretary of State, under the “Motor Voter” Law of 1993. The United States sued Missouri Secretary of State Robin Carnahan because the 1993 federal law requires states to maintain accurate voter registration records. However, the judge said that the federal government should have sued the County Clerks of the counties with problems. The decision makes it plain that Missouri voter registration records in many counties have serious problems; but it said there was no evidence that these record-keeping problems have caused any voter fraud. The decision is United States v Carnahan, 05-4391, w.d.
On April 15, the New Hampshire Libertarian Party held a state convention and nominated George Phillies for president. The national Libertarian Party won’t choose a presidential candidate until May 2008. Phillies is seeking the national nomination.
Under the United States federal structure, national party conventions actually have no legal ability to enforce their decision on any state, or any state party. There are many instances in U.S. history at which a state party chose a presidential candidate who was someone different than the choice of the national party. Under U.S. election laws, state parties choose candidates for presidential elector, and state parties are completely free to choose presidential elector candidates who are pledged to someone other than the national convention choice.
Thus in 1948, the Democratic Parties of Alabama, Mississippi, South Carolina and Louisiana chose Strom Thurmond as their presidential candidate, and Harry Truman had to qualify as an independent in those states (in Alabama it was too late for Truman to qualify, so he was off the ballot). The Democratic Party of Alabama also nominated George Wallace for president in 1968 instead of Hubert Humphrey, and Humphrey was on the ballot as the nominee of a minor party. In 1912 the Republican Parties of California and South Dakota refused to put William Howard Taft on the ballot, and instead listed Theodore Roosevelt. In 2000 the Arizona Libertarian Party refused to list Harry Browne on the ballot and instead chose L. Neil Smith.
If George Phillies fails to win the national convention nomination next year, he is free to tell the New Hampshire Libertarian Party not to nominate him. However, the New Hampshire Libertarian Party says it will immediately start circulating a petition with Phillies’ name on it. If that petition is submitted, but Phillies resigns the NHLP nomination, and the NHLP asks the Secretary of State to let it substitute the actual choice of the national convention, no one is sure what would happen. New Hampshire’s Secretary of State, who has been in office almost 30 years, permitted John B. Anderson to substitute a new candidate for vice-president in 1980 (Anderson had listed Milton Eisenhower on the petition for vice-president, but the actual v-p candidate, chosen too late to be on the petition, was former Wisconsin Governor Patrick Lucey). But Gardiner says he won’t permit substitution for president. A lawsuit to force him to accept presidential substitution would be likely to win; all the precedents from lawsuits in other states on this issue are favorable.
